Cahalane v. Skydive Cape Cod, Inc.
| Decision Date | 20 July 2016 |
| Docket Number | 13-CV-0207-H |
| Parties | Tricia Cahalane v. Skydive Cape Cod, Inc. et al. [1] No. 134251 |
| Court | Massachusetts Superior Court |
Filed July 26, 2016
Tricia Cahalane was seriously injured during a tandem skydiving activity conducted under the auspices of the defendant Skydive Cape Cod, Inc. This action seeks damages for her injuries from Skydive Cape Cod; its owner, Jimmy Mendonca her skydiving instructor, Marcus Silva; the airport management company, Cape Cod Flying Circus, Inc.; and Flying Circus' owner, Timothy Howard, under theories of gross negligence, strict liability, deceit and misrepresentation. All of the defendants have moved for summary judgment on Ms Cahalane's claims. They argue, primarily, that Ms Cahalane voluntarily released them from liability by signing two covenants not to sue before participating in the skydive. The Court agrees.
For this reason, and for reasons discussed below, the defendants' motions for summary judgment must be ALLOWED.
On July 25, 2012, Ms. Cahalane visited the Chatham Municipal Airport to participate in a skydive orchestrated by Skydive Cape Cod. Before skydiving, she signed and/or initialed several documents waiving legal action against the defendants in the event of an injury related to the skydive. The crux of these waivers provided that she and her family " assume [ ] the risk of serious injury and/or death and agree never to sue Skydive Cape Cod or any other parties involved." By signing, she acknowledged that she had " been adequately informed about [the] dangers and risks, " and that she was " sufficiently informed to sign agreements with which [she] willingly [gave] up important legal rights."
These waivers released Skydive Cape Cod from liability even if the participant was injured by its negligence. Moreover, the waivers precluded any future legal argument that the waivers themselves were unenforceable or against public policy, and provided that any " ambiguities be resolved in favor of Skydive Cape Cod, Inc."
Not only were Skydive Cape Cod and its employees released from liability under these agreements, so too were the " owners and lessees . . . of land upon and from which the parachute jumping and related aircraft operations [were] conducted, " as well as " the owners and operators of the skydiving facility, " and their " officers, directors, agents, servants, employees, shareholders [etc.]." Flying Circus is specifically named in the waiver.
Ms. Cahalane was given the opportunity to purchase a release from these waivers for $750. She declined to do so. She asked an employee of Skydive Cape Cod what this provision meant and was told that " it was just standard waiver language and that nobody ever bought it." Ms. Cahalane has stated that at the time she was reviewing these contracts, her attention was divided between the waiver terms and an instructional video about skydiving.
During Ms. Cahalane's skydive, she was attached to Marcus Silva by a harness. As the pair prepared to land, Mr. Silva performed a " hook turn, " a pivot of at least 180 degrees. Hook turns were not prohibited by the United States Parachuting Association at the time of Ms. Cahalane's skydive, but have since been prohibited. When Ms. Cahalane landed, her legs were straight under her. She had been instructed, just before landing, to lift her legs so as to be in a seated position. Ms. Cahalane claims that a sudden gust of wind sent her legs downward. She fractured both femurs.
Additional relevant material facts may be found below.
The defendants are entitled to summary judgment if they can demonstrate that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c); Cassesso v. Commissioner of Corr., 390 Mass. 419, 422, 456 N.E.2d 1123 (1983). The defendants, as the moving parties, carry the burden of affirmatively demonstrating the absence of a triable issue, and may satisfy their burden either by submitting affirmative evidence that negates an essential element of the plaintiff's case, or by demonstrating that the plaintiff has no reasonable expectation of proving an essential element of her case at trial. Flesner v. Technical Commc'n Corp., 410 Mass. 805, 809, 575 N.E.2d 1107 (1991). If the defendants meet this burden, the plaintiff is obliged to set forth specific facts showing that there is a genuine issue for trial if she wishes to survive summary judgment. O'Brion, Russell & Co. v. LeMay, 370 Mass. 243, 245, 346 N.E.2d 861 (1976). The plaintiff may not rest on her pleadings and mere assertions of disputed facts. LaLonde v. Eissner, 405 Mass. 207, 209, 539 N.E.2d 538 (1989). The Court reviews the evidence in the light most favorable to the plaintiff as the nonmoving party, but does not weigh evidence, assess credibility or find facts. Community National Bank v. Dawes, 369 Mass. 550, 553, 340 N.E.2d 877 (1976).
This action is appropriately considered on the defendants' motions for summary judgment where their entitlement to such judgment turns on the interpretation of the waivers signed and initialed by Ms. Cahalane. Liability waivers are interpreted as any other contract, Herson v. New Boston Garden Corp., 40 Mass.App.Ct. 779, 667 N.E.2d 907, and their interpretation is a question of law for the court, unless their language is ambiguous. Lumber Mutual Ins. Co. v. Zoltek Corp., 419 Mass. 704, 707, 647 N.E.2d 395 (1995). Further, whether the waivers' terms are ambiguous is for the Court to decide. See Fashion House, Inc. v. K-Mart Corp., 892 F.2d 1076, 1083 (1st Cir. 1989).
The Court addresses each of Ms. Cahalane's theories of liability in the following order: unenforceability of the waivers for want of procedural and substantive fairness gross negligence, and strict liability.
Covenants not to sue are generally enforceable. Cormier v. Central Massachusetts Chapter of the Nat'l Safety Council, 416 Mass. 286, 288, 620 N.E.2d 784 (1993); Minassian v. Ogden Suffolk Downs, 400 Mass. 490, 493, 509 N.E.2d 1190 (1987). Only waivers procured by fraud, duress, or deceit, or those which offend public policy, will subvert that general rule. See Sharon v. City of Newton, 437 Mass. 99, 103-04, 769 N.E.2d 738 (2002). Ms. Cahalane asserts that the waivers she signed are unconscionable and unenforceable under both of these exceptions. Unconscionability must be determined on a case-by-case basis, and a judicial inquiry must focus on whether the challenged provision could result in oppression and unfair surprise to the disadvantaged party. Waters v. Min Ltd., 412 Mass. 64, 68, 587 N.E.2d 231 (1992). Thus, we center on the point the contract was made, i.e., when Ms. Cahalane signed the waivers. See Piantes v. Pepperidge Farm, Inc., 875 F.Supp. 929, 936 (D.Mass. 1995) (applying Massachusetts law).
First, Ms. Cahalane contends that the liability waivers are unconscionable because the waivers were procured in a " procedurally deficient manner." Specifically, she has stated that despite making a reservation to jump and paying a deposit one month in advance, she was not provided the waivers until the day of her jump, and was given very little time to review it or ask questions. Further, she contends that there was a vast disparity between her bargaining power and that of the defendants, which should invalidate the waiver. She also opines that Skydive Cape Cod represented to her, through advertising materials and in person, that it complied with United States Parachuting Association rules and recommendations, and provided the safest training in the industry. These representations were fraudulent, she claims, because Mr. Silva performed a hook turn and chose to jump when the wind speed suggested it was not safe to do so.[2]
That Ms. Cahalane was given the liability waiver on the day of her jump does not make the liability waivers procedurally unconscionable. See Malecha v. St. Croix Valley Skydiving Club, 392 N.W.2d 727, 730 (Minn.App. 1986) (). She casts her case as one involving an unsophisticated thrill-seeker burdened by the demands of a sophisticated business and its property managers. But even if Ms. Cahalane was not in a position to negotiate the terms of the liability waiver, and would have lost her deposit had she refused to assent to every term of the waiver, the principle of unconscionability is inapplicable here. That principle is reserved to prevent oppression and unfair surprise, not to disturb risk-allocation because of superior bargaining power. Zapatha v. Dairy Mart, Inc., 381 Mass. 284, 292, 408 N.E.2d 1370 (1980), quoting U.C.C. § 2-302, cmt. 1. The plaintiff concedes she was aware before she arrived at Skydive Cape Cod that skydiving was a dangerous activity that could kill or seriously injure her.
That Mr. Silva conducted a hook turn is also immaterial to the plaintiff's claims of misrepresentation. The maneuver was not prohibited at the time Ms. Cahalane had her accident. Even if a factfinder were to determine that performing such a maneuver was negligent, it would not make Skydiving Cape Cod's representations to Ms. Cahalane fraudulent. The defendants never represented to her that hook turns would not be used. Moreover, the discretion of instructors concerning whether or not it is safe to jump is incorporated into the liability waiver's assurance to Ms. Cahalane that the experience would be made as safe as possible.
In other words, Ms. Cahalane was aware that...
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